INTRODUCTION
The Intellectual Property ecosystem stands as a canopy to the inventions and innovations that have made our lives easier and convenient. Intellectual Property comprises all those things that have arisen out of the human brain ranging from ideas, innovations, poems, stories, sonnets, music, music samples, to processes involved in development of products and even methods improving efficiency of such processes and many more. Intellectual Property law regulates the profits arising out of such creations, their distribution as well as manufacturing rights.
“It is to the advantage of the community that there should be a government instrumentality, which can guide the inventor inexperienced in the ways of industry to make the best use of his discovery.”
~A. LAKSHMINATH
Intellectual Property Rights- National, Regional
and International Perspectives
After seven and a half strenuous years of talks, the Uruguay Round(1986-1994) of negotiation of the WTO resulted in the introduction of intellectual property rules into the multilateral trading system for the first time. The Uruguay Round aims to bring the IP rules under common international law for providing with smooth and ideal protection to intellectual property. Despite such efforts some unavoidable differences between economies still exists up to date. This is not an intentional effort but rather a joint result of conventions,
IP LAWS VARIATIONS
Developed countries, the likes of the USA, have always led the way in intellectual property rights. The United States Constitution states “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This is one of the earliest recorded instances of protection granted to discoveries and quite a landmark one. In the US, creative work is automatically protected by copyright as long as it is original and fixed in a tangible form. Whereas in the U.K. & India, copyright protection needs to be invoked or taken up. The USA, UK and India are signatories to the Berne Convention on copyright. Under this, each member state recognises the copyright of authors from other member states in the same way as the copyright of its own nationals. Except for differences arising out of older legislations, differences in duration of copyright, there is not much difference between copyright laws of India.
In most countries, trade mark rights are established through registration – this is known as ‘First to File’. However, in the USA, as in the UK, the ownership of a trade mark is established by whoever first uses it in commerce. This is known as the ‘First to Use’ system and requires you to actually use the mark in connection with goods or services in order to protect your trade mark. Therefore, if there is a dispute between you and another party over a trade mark, whoever used it first commercially will own the right, even if they did not register.In the USA, it is the first party who uses a trade mark commercially that owns the rights for that trade mark.
A distinct feature of the Indian patent system is the concept of “compulsory licensing” which grants the Indian government the power to provide for licenses to appropriate parties in case the patent holder fails to meet demands of the public or fails to fulfil the requirements of the public. This feature of the Indian system signifies that focus is on fulfilling the public demands of the invention rather than emphasising on granting protection to the inventor. Conversely the US, as has been laid down in its Constitution, aims to grant majority protection to the inventor vis-a-vis under US law, if your invention is publicly disclosed without a patent, you have a grace period of one year to register your patent. However, to promote discoveries and inventions by NGOs and educational institutions, protection as well as discounts have been granted for registering a patent in both the US and India. In UK [Article 60 of the EPC] and India[Section 2(y), 6 and 7 of the Patents (Amendment) Act, 2005], the first to have filed the patent application are considered as the inventor which means that the filing date is what is considered and is given the first priority even if a second person comes up with the invention before the first. In the case of the USA, in case of two or more applications for the same invention a determination is made as to who invented it first. If two or more applications are filed by different inventors claiming substantially the same patentable invention a proceeding known as an “interference” is instituted by the USPTO to determine who is the first inventor and entitled to the patent. (35 U.S.C. Section 135) provided that the patent has not been issued, nor the application been published, for more than one year prior to the filing of the conflicting application, and provided also that the conflicting application is not barred from being patentable for some other reason.
Aside from differences there are similarities or commonality amongst the IP systems of the three countries. All the three countries are contracting parties of :
- Berne Convention (each member state recognises the copyright of authors from other member
states in the same way as the copyright of its own nationals ) - Paris Convention (under this, any person from a signatory state can apply for a patent or trade marking any other signatory state, and will be given the same enforcement rights and status as a national of that country would be)
- Patent Cooperation Treaty
